• Criminal Law (4)
• Litigation (1)
• Real Property (1)
• Tax (1)

Criminal Law

 

Issues: Whether MCR 6.302 and constitutional due process require a trial court to inform a defendant pleading guilty or no contest to CSC-I or CSCII that he or she will be sentenced to mandatory lifetime electronic monitoring, if required by MCL 750.520b(2)(d) or MCL 750.520c(2)(b); Denial of defendant's motion to withdraw his plea; Statutory interpretation; People v. Lang; Haliw v. Sterling Hts.; People v. Armstrong; Klooster v. City of Charlevoix; Sun Valley Foods Co. v. Ward; Due process; Requirement for plea to constitute a waiver of constitutional rights; Boykin v. Alabama; McCarthy v. United States; Brady v. United States; "Direct consequences" of a plea; Meyer v. Branke (4th Cir.); Steele v. Murphy (1st Cir.); Cuthrell v. Patuxent Inst. Director (4th Cir.); Blankenship v. State (TN); Smith v. Doe; Padilla v. Kentucky

Court: Michigan Supreme Court

Case Name: People v. Cole

e-Journal Number: 51788

Judge(s): Cavanagh, Young, Jr., M. Kelly, Markman, Hathaway, M.B. Kelly, and Zahra

 

The court held that "mandatory lifetime electronic monitoring for convictions of CSC-I and CSC-II is part of the sentence itself" and is thus, a direct consequence of a defendant's guilty or no-contest plea. The court also held that "at the time a defendant enters a guilty or no-contest plea, the trial court must inform the defendant if he or she will be subject to lifetime electronic monitoring." Finally, the court held that in the absence of this information about a direct and automatic consequence of a defendant's decision to enter a plea and forgo his or her right to a trial, "no defendant could be said to have entered an understanding and voluntary plea." Thus, the court affirmed the judgment of the Court of Appeals and remanded the case to the trial court to allow the defendant the opportunity to withdraw his plea. Defendant pleaded to two counts of CSC-II under MCL 750.520c(1)(a), for sexual acts involving one of his stepdaughters, who was under the age of 13 at the time of the offenses. The trial court imposed concurrent sentences of 5 to 15 years on each count, in accordance with the Cobbs evaluation. Also, and as required by MCL 750.520c(2)(b), the court ordered that defendant be placed on lifetime electronic monitoring following his release from prison. He moved to amend the judgment of sentence or permit withdrawal of his plea, arguing in part that the failure to advise him of the mandatory penalty of lifetime electronic monitoring rendered his plea involuntary. The trial court denied the motion. In a split opinion, the Court of Appeals reversed the trial court and remanded to allow him the opportunity to withdraw his plea. The majority held that mandatory lifetime monitoring was not a collateral consequence of the plea or sentence, but part of the sentence itself. While the court agreed that MCR 6.302(B) through (E) constitute explicit requirements imposed on a trial court conducting a plea hearing, the court held that the broader directive of MCR 6.302(A) that the plea must be "understanding, voluntary, and accurate" might, in a given proceeding, encompass more than the explicit requirements of the remainder of the court rule. Specifically, the court held that the "understanding, voluntary, and accurate components of subrule (A) are premised on the requirements of constitutional due process, which might not be entirely satisfied by compliance with subrules (B) through (D)." Thus, regardless of the explicit wording of the subrules, "a court may be required by the Due Process Clause of the Fourteenth Amendment to inform a defendant that mandatory lifetime electronic monitoring is a consequence of his or her guilty or no-contest plea." A plain reading of the relevant statutory text compelled the court that "the Legislature intended mandatory lifetime electronic monitoring to be an additional punishment and part of the sentence itself when required by the CSC-I or CSC-II statutes." Thus, under Smith's framework, the court's analysis ends. The court held that "when a defendant pleads guilty or no-contest and is sentenced to prison for a charge of CSC-I or CSC-II, and the controlling statute mandates lifetime electronic monitoring, the sentence of mandatory lifetime electronic monitoring constitutes a result of the plea that has 'a definite, immediate and largely automatic effect on the range of the defendant's punishment.'" The court further held that mandatory lifetime electronic monitoring is a direct consequence of a plea. Thus, when the governing criminal statute mandates that a trial court sentence a defendant to lifetime electronic monitoring, due process requires the trial court to inform the defendant entering the plea that he or she will be subject to mandatory lifetime electronic monitoring. Because MCR 6.302 is premised on constitutional due-process requirements, a defendant who will be subject to mandatory lifetime electronic monitoring must be so advised by the trial court at the time of the plea hearing in order to satisfy the court rule's requirement that the plea be understanding and voluntary." Further, the court held that "to hold otherwise would not only offend due process, but would be inconsonant with the practical rationale underlying the requirement that a plea be knowing and voluntary."

 

Issues: Search and seizure; Whether the police legally detained defendant and searched her purse; Whether defendant consented to the search; Whether defendant's constitutional rights under the Fourth Amendment were violated; People v. Corr; People v. Jenkins; People v. Champion; Terry v. Ohio; Minnesota v. Dickerson; People v. Nelson; United States v. Cortez

Court: Michigan Court of Appeals (Unpublished)

Case Name: People v. Dixon

e-Journal Number: 51724

Judge(s): Per Curiam - Stephens, Whitbeck, and Beckering

 

The court held that based on the circumstances Officer B was permitted to detain the defendant and conduct a limited search of her purse for weapons. However, the court could not conclude that the wallet inside the purse that contained illegal items was within the scope of the Terry stop as it was unclear whether it was reasonable to conclude that the wallet would have contained a weapon. Thus, the search was not permissible under Terry. The district court failed to determine whether defendant consented to the search of her purse, which would render the search constitutional. The district court was directed to address the consent issue on remand. Defendant was detained by B and her purse was searched. Inside the purse was a small green wallet that contained a piece of crack cocaine and a crack pipe. The court concluded that an officer presented with the circumstances testified to by B would have a reasonable articulable suspicion that defendant was engaged in criminal activity when she was detained. B stopped defendant in an area where prostitution was known by the police to occur with some frequency. He spotted her walking down the street and attempting to flag down passing motorists. B testified that when soliciting, prostitutes will walk "up and down a certain area," "get the driver's attention," and then "usually get into the car and . . . negotiate some kind of deal." From data, a "'trained officer draws inferences and makes deductions that might well elude an untrained person.'" When B stopped defendant she indicated that she was heading to her sister's house. After B left and began watching her from a distance, she walked to a store and spoke to two people in the parking lot. She then returned to flagging down vehicles. A vehicle stopped, and when it left B, pulled in behind it. Although the circumstances described by B permitted him to detain defendant and conduct a limited search of her purse for weapons, the drugs and paraphernalia that were discovered were not merely discovered in her purse. Rather, they were discovered in a small green wallet located inside her purse. Affirmed.

 

Issues: Whether the trial court properly granted the defendant's motion to quash the information as to the defendant's first-degree premeditated murder charge (MCL 750.316(1)(a)) and reduced the charge to second-degree murder (MCL 750.317); People v. Plunkett; People v. Hudson; "Probable cause"; People v. Yost; People v. Harlan (On Remand); "Premeditation"; People v. Anderson; People v. Unger; People v. Gonzalez

Court: Michigan Court of Appeals (Unpublished)

Case Name: People v. Hyde

e-Journal Number: 51748

Judge(s): Per Curiam - Donofrio, Jansen, and Shapiro

 

The court held that the prosecution presented evidence during the preliminary examination from which the premeditation and deliberation elements of first-degree premeditated murder could be inferred. Thus, defendant was properly bound over for first-degree premeditated murder and the district court did not abuse its discretion in binding him over as to the charge. Thus, the court reversed and remanded the trial court's order quashing the first-degree murder charge. Four witnesses testified at the preliminary examination - CJ, AJ (CJ's mother and defendant's live-in girlfriend), and two male friends of defendant. Each was present in the house at the time of the events. CJ testified that T (the victim) dropped her off at her mother's home so that she could use the Internet connection for a Skype meeting and that defendant was present at the home. She testified that after she finished her Skype meeting she called T to come and pick her up and upon his return to the home, he parked in front of the house and went inside. CJ said that defendant said hello to T who ignored him initially, then responded rudely. CJ and AJ testified that defendant and T began to argue, and the argument grew heated. Although AJ asked T to leave and tried to diffuse the situation, T did not immediately leave. There was also testimony that defendant asked T to leave but T refused. Some harsh words were exchanged and T told defendant to step outside and then T went out the front door. T stayed on the porch right next to the front door rather than returning to his car where CJ was waiting for him. According to AJ's testimony, after T stepped onto the front porch, defendant went to the kitchen, got a knife, and then walked to the front door with the knife. AJ testified that she yelled, "What are you doing with that knife?" All witnesses testified that defendant and T got into a physical altercation on the threshold of the door that lasted for several seconds. There was testimony that either T alone or both men threw punches before the stabbing occurred. There was conflicting testimony as to which of the men opened the door and as to the precise location of the struggle. There was also some testimony from defendant's two friends who were present that when T left the house before the final altercation, they were in fear that he had left in order to obtain a weapon. CJ testified that after the T left the porch and walked to his car, she saw blood all over his clothes and took him to the hospital. AJ testified that after the altercation, defendant shut the front door, and was holding a bloody knife. Defendant left the house with his two friends and went to the home of one of them. He stipulated to the fact that T died due to three stab wounds. The district court bound defendant over on charges of first-degree murder and voluntary manslaughter. The trial court concluded that the evidence could support only second-degree murder and manslaughter charges and quashed the information. The court concluded that there was conflicting evidence as to whether the defendant pursued the victim or left the house. Thus, while there was contradictory testimony as to who initiated the contact and altercation after defendant obtained the knife, resolution of the conflict must be for the jury. "There were also widely differing inferences that may be drawn from the testimony and determining which should also be drawn" was for the jury.

 

Issues: Sentencing; Offense variable (OV) scoring; People v. Hornsby; People v. Ratkov (After Remand); People v. Spanke; People v. Callon; Waiver; People v.Carter; People v. Hicks; People v. McGraw; People v. Sargent; People v. Morson; People v. Adkins; People v. Apgar; People v. Mackle; People v. Williams; People v. Jones; People v. Nickens; People v. Perkins; Whether it was correct to score OVs 3 and 13; People v. Francisco; People v. Johnson

Court: Michigan Court of Appeals (Unpublished)

Case Name: People v. Jamerson

e-Journal Number: 51671

Judge(s): Per Curiam – Owens, Talbot, and Meter

 

The court held that the trial court did not err by using factual assertions pertaining to charges that were dismissed when it scored defendant's OVs. Thus, the court affirmed defendant's convictions and sentences for larceny from a person and delivery of cocaine less than 50 grams. The court rejected his argument that the trial court improperly scored his OVs. The court found that he did not effectively challenge the validity of the facts supporting the scoring of OVs 1, 2, 3, 4, 8, 11, 12 and 13. The court noted that he challenged the facts supporting the scoring of these OVs in his sentencing memorandum, but found the document "self-serving, comprised of complete denials and not supported by any evidence." In contrast, the court observed, the trial court used preliminary examination testimony, which occurred under oath and was subject to cross-examination in its determination of the factual support for scoring the OVs. The court further found that defendant had waived his scoring objections.

 

Litigation

 

This summary also appears under Real Property

 

Issues: Boundary line dispute; The "doctrine of repose"; Whether defendant-Tudor's first issue on appeal was properly preserved; Camden v. Kaufman; Applicability of res judicata; Washington v. Sinai Hosp. of Greater Detroit; Labor Council, MI Fraternal Order of Police v. City of Detroit; Requirement that the appellant "adequately prime the pump"; Mitcham v. Detroit; Due process; Reed v. Reed; "Inverse condemnation"; In re Acquisition of Land-Virginia Park; Procedural due process; York v. Civil Serv. Comm'n

Court: Michigan Court of Appeals (Unpublished)

Case Name: Morelli v. Tudor

e-Journal Number: 51655

Judge(s): Per Curiam – Murphy, Stephens, and Riordan

 

Concluding, inter alia, that defendant-Tudor's first argument on appeal was not properly preserved and that it would likely have been rejected by the trial court on the basis of res judicata, the court affirmed the trial court's order granting the plaintiffs summary disposition in this boundary line dispute. The parcels of land that plaintiffs and Tudor owned originally were a portion of a larger parcel owned by the Ls. The Ls split their land into parcels in 1979. They commissioned a survey of the property, which was performed by F. He marked the corners of each parcel with iron rods and caps, and recorded the survey on 8/7/79. The Ls then sold one of the newly marked parcels of property by warranty deed. That parcel of land was eventually transferred three more times by warranty deed and was then transferred to Tudor, also by warranty deed, on 9/15/00. Each of the warranty deeds related to Tudor's parcel used F's property description. The parcel of land that plaintiffs own was situated adjacent to the northern border of Tudor's parcel. In 1999, the county commissioned a survey of the property, which was completed by W, who apparently did not reference the F survey when placing his corner markers that established the boundary between Tudor's and plaintiffs' parcels. The markers from the W survey were placed 30 feet north of the F markers. Tudor asserted that the W survey was consistent with a government survey completed in the 1930s. It did not appear that the W survey was recorded, and there was no evidence that the W survey was ever referenced in any deed. In 2002, plaintiffs purchased their parcel, which was separated from Tudor's parcel by a fence that sat on the boundary line as set forth by the F survey. Tudor approached plaintiffs seeking to purchase a 30 foot wide strip of land that ran the length of the border between the parcels. They rejected her offer. Tudor hired a surveyor to conduct a survey of the land. That surveyor used the W corner markers, as opposed to the F corner markers, and determined that the property line was situated 30 feet north of the fence and the F markers. Thus, Tudor removed the fence between the properties and erected a new fence, which was 30 feet north of the original one. Plaintiffs sued to quiet title to the strip of land at issue. The trial court ruled for plaintiffs, determining that the doctrine of repose established the F corner markers as the markers that established the property boundaries. The court previously affirmed that decision. Later, plaintiffs filed this case, alleging that Tudor had constructed a fence 33 feet north of the property line as determined by the trial court and affirmed by the court in the prior case. Tudor asserted in the trial court that the county had completed a new survey in 2007 and placed a new corner monument, and she built the fence after measuring from the new corner monument. However, her brief on appeal did not even mention the 2007 survey. The court concluded that "absent any reference to the 2007 survey or plaintiffs' alleged expansion of their property rights granted by this Court, there are no new facts or arguments that would have precluded the application of" res judicata. Tudor's argument on appeal solely related to the F survey and could not be read as anything other than an attempt to relitigate the court's prior decision. "To now argue that prior decision was legally wrong is to seek the proverbial second bite of the apple."

 

Real Property

 

This summary also appears under Litigation

 

Issues: Boundary line dispute; The "doctrine of repose"; Whether defendant-Tudor's first issue on appeal was properly preserved; Camden v. Kaufman; Applicability of res judicata; Washington v. Sinai Hosp. of Greater Detroit; Labor Council, MI Fraternal Order of Police v. City of Detroit; Requirement that the appellant "adequately prime the pump"; Mitcham v. Detroit; Due process; Reed v. Reed; "Inverse condemnation"; In re Acquisition of Land-Virginia Park; Procedural due process; York v. Civil Serv. Comm'n

Court: Michigan Court of Appeals (Unpublished)

Case Name: Morelli v. Tudor

e-Journal Number: 51655

Judge(s): Per Curiam – Murphy, Stephens, and Riordan

 

Concluding, inter alia, that defendant-Tudor's first argument on appeal was not properly preserved and that it would likely have been rejected by the trial court on the basis of res judicata, the court affirmed the trial court's order granting the plaintiffs summary disposition in this boundary line dispute. The parcels of land that plaintiffs and Tudor owned originally were a portion of a larger parcel owned by the Ls. The Ls split their land into parcels in 1979. They commissioned a survey of the property, which was performed by F. He marked the corners of each parcel with iron rods and caps, and recorded the survey on 8/7/79. The Ls then sold one of the newly marked parcels of property by warranty deed. That parcel of land was eventually transferred three more times by warranty deed and was then transferred to Tudor, also by warranty deed, on 9/15/00. Each of the warranty deeds related to Tudor's parcel used F's property description. The parcel of land that plaintiffs own was situated adjacent to the northern border of Tudor's parcel. In 1999, the county commissioned a survey of the property, which was completed by W, who apparently did not reference the F survey when placing his corner markers that established the boundary between Tudor's and plaintiffs' parcels. The markers from the W survey were placed 30 feet north of the F markers. Tudor asserted that the W survey was consistent with a government survey completed in the 1930s. It did not appear that the W survey was recorded, and there was no evidence that the W survey was ever referenced in any deed. In 2002, plaintiffs purchased their parcel, which was separated from Tudor's parcel by a fence that sat on the boundary line as set forth by the F survey. Tudor approached plaintiffs seeking to purchase a 30 foot wide strip of land that ran the length of the border between the parcels. They rejected her offer. Tudor hired a surveyor to conduct a survey of the land. That surveyor used the W corner markers, as opposed to the F corner markers, and determined that the property line was situated 30 feet north of the fence and the F markers. Thus, Tudor removed the fence between the properties and erected a new fence, which was 30 feet north of the original one. Plaintiffs sued to quiet title to the strip of land at issue. The trial court ruled for plaintiffs, determining that the doctrine of repose established the F corner markers as the markers that established the property boundaries. The court previously affirmed that decision. Later, plaintiffs filed this case, alleging that Tudor had constructed a fence 33 feet north of the property line as determined by the trial court and affirmed by the court in the prior case. Tudor asserted in the trial court that the county had completed a new survey in 2007 and placed a new corner monument, and she built the fence after measuring from the new corner monument. However, her brief on appeal did not even mention the 2007 survey. The court concluded that "absent any reference to the 2007 survey or plaintiffs' alleged expansion of their property rights granted by this Court, there are no new facts or arguments that would have precluded the application of" res judicata. Tudor's argument on appeal solely related to the F survey and could not be read as anything other than an attempt to relitigate the court's prior decision. "To now argue that prior decision was legally wrong is to seek the proverbial second bite of the apple."

 

Tax

 

Issues: Charitable exemption from ad valorem taxation; MCL 211.7o(1); Wexford Med. Group v. City of Wexford; "Substance of an arrangement" as the guiding principle in determining ownership and tax exemption status; NMC v. Green Lake Twp.; Criteria for tax exemption as a charitable institution; Jackson v. Phillips (MA); Whether articles of incorporation are definitive in determining whether the use of property qualifies as charitable; Michigan Baptist Homes Dev. Co. v. City of Ann Arbor; Recreational opportunities furthering religious purposes; Gull Lake Bible Conference Ass'n v. Ross Twp.

Court: Michigan Court of Appeals (Unpublished)

Case Name: Camp Retreats Found., Inc. v. Township of Marathon

e-Journal Number: 51676

Judge(s): Per Curiam – Fitzgerald, Murray, and Gleicher

 

The court held that the tax tribunal erred in denying the petitioner a charitable exemption from an ad valorem taxation on the grounds that it did not meet the definition of a charitable organization. Thus, the court reversed and remanded the case for entry of judgment in favor of petitioner. Petitioner purchased 106 acres in the respondent-township with funds provided by a tax-exempt nonprofit. The property was used for camps, retreats, and other philanthropic activities by organizations primarily associated with the Muslim faith. Respondent denied petitioner's request for tax exemption and the tribunal agreed, finding it was chiefly organized for recreational purposes rather than charitable purposes. The court held that petitioner's property fulfilled the requirements of a charity because its primary use focused on "bring[ing] people's minds or hearts under the influence of . . . religion," and it offered this charity on a nondiscriminatory basis. The court noted that it was "hard-pressed to distinguish this case" from Gull Lake. As in Gull Lake, the camp's "recreational opportunities furthered religious purposes." The court noted that Islamic worship and observance were "inextricably interwoven into the camp's daily programs." It also noted that an Internet description of the property introduced by respondent portrayed the camps as providing "'a full residence summer and winter camp experience in a beautiful setting within an Islamic environment.'" Thus, the court concluded that "the camp's overall structure operated as a 'gift' for the benefit of an indefinite number of persons, by bringing their minds or hearts under the influence of religion." The court also rejected as unsupported the tribunal's finding that petitioner failed to show that it made the property "'available to the general public'" or "'benefited an indefinite number of persons.'" The court concluded that the testimony showed that participants of every faith were welcomed, as were atheists. The court concluded that the tribunal "misinterpreted the law by requiring that the property remain open to trespassers to qualify as a charity."

 

Classifieds

Announcement
Association Desired
Employment Available
Employment Wanted
Event/Seminar
For Sale
Office Space
Public Notice
Referrals
Advertising Marketplace

Fields of Practice

Adoption
ADR
Appellate Practice
Arbitration & Mediation
Attorney Discipline
Business Law
Commercial Litigation
Copyrights
Divorce
Family Law
Federal False Claims
Health Care
Immigration
Intellectual Property
Law Enforcement
Legal Malpractice
Lemon Law
Licensing
Medicare Liens
Patents
Personal Injury
Stockbrokers
Taxation
Trademarks

Disclaimer